The possibility of someone facing criminal charges for sleeping in a car parked on a street became a sticking point for some members of the Flagstaff City Council, which was divided about what it would like to do about the city’s anti-camping ordinance.
The ordinance, which was first enacted in 2005, prohibits camping on public property, including sleeping or making preparations to sleep; using a vehicle, tent, shelter or other structure for sleeping; making a fire or cooking in a place other than a city-provided barbeque pit; or storing personal belongings on public property.
The ordinance requires a person to be given a warning before they can be arrested for violating the law. A violation is a class 3 misdemeanor, which is the lowest level available, senior assistant city attorney Marianne Sullivan said at the council meeting Tuesday night. Since 2013, 22 people have been arrested in violation of the ordinance and 226 warnings have been issued, Flagstaff Police Department Deputy Chief Dan Musselman said in a presentation to the council.
At the meeting, Sullivan said necessity can be used as a defense for violating the law, either when a person is approached by a police officer or when a person who receives a citation goes to court. Sullivan said necessity could mean the shelters are full that day or a person is fleeing violence. When officers encounter a person violating the ordinance, they provide the person with a list of social service organizations and contact information, Sullivan said.
At the meeting, 10 members of the public spoke out against the ordinance, with many saying they are currently experiencing homelessness or have worked with individuals experiencing homelessness.
Community activist Klee Benally said the ordinance showed a “lack of recognition of the humanity and basic dignity of people who are unsheltered.”
Two of the speakers said they are living out of their vehicles, which is a violation of the ordinance.
Both speakers said they had recently been awoken by police pounding on the doors of the vehicle in the middle of the night, and both said officers threatened them with jail time if they were found in violation again.
Councilwoman Eva Putzova said encounters of that nature, when a person is awakened in the middle of the night, could be a reason to repeal the ordinance.
“You’re interrupting somebody’s sleep in the middle of the night,” Putzova said, adding that she felt it would be more appropriate for social workers to approach people camping illegally, rather than police officers.
Putzova also criticized the ordinance for specifically not allowing people to create campsites, like using shelters and sleeping bags. “Sleeping alone does not constitute an offense, however setting up a temporary shelter, cooking, campfires for warmth, etc., may collectively establish a reason to believe a person is camping,” the ordinance reads in part.
“These are exactly the things that save lives,” Putzova said.
Putzova said the ordinance has not significantly reduced the number of littering violations, trespassing violations and illegal fires in the city.
According to Musselman’s presentation, there was a decrease in wildland fires since the ordinance was implemented, but forest thinning and management also began in 2000, which was when the significant dropoff in fire numbers began.
In the executive summary of the issue, Mussleman said city staff recommended the council keep the ordinance as it stands “so it is enforceable and able to withstand any legal challenges and remains an effective tool to combat the real risk and danger of forest fires.”
At the meeting, Putzova asked if the council would consider changing a violation of the ordinance from a criminal offense to a civil offense. At the meeting, Musselman said if it were a civil offense, it would greatly diminish officers’ ability to enforce the ordinance, because the only enforcement would be fines.
Councilmen Scott Overton and Charlie Odegaard said they were supportive of the ordinance as it stands, and Overton said he did not believe the data for violations was enough to require a second look from the council.
However, Vice Mayor Jamie Whelan and councilmembers Putzova, Celia Barotz and Jim McCarthy asked that the police department research options, including changing the offense from criminal to civil, and bring the issue back to the council at a later date.